25204 Federal Register / Vol. 78, No. 83 / Tuesday, April 30, 2013 / Rules and Regulations 

* * * * * 

[FR Doc. 2013–10180 Filed 4–29–13; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Land Management 

43 CFR Parts 2090 and 2800 

[LLWO301000.L13400000] 

RIN 1004–AE19 

Segregation of Lands—Renewable 

Energy 

AGENCY: Bureau of Land Management, 

Interior. 

ACTION: Final rule. 

SUMMARY: The Bureau of Land 

Management (BLM) is amending its 

regulations to add provisions allowing 

the BLM to temporarily segregate from 

the operation of the public land laws, by 

publication of a Federal Register notice, 

public lands included in a pending 

wind or solar energy generation right-ofway (ROW) application, and public 

lands that the BLM identifies for 

potential future wind or solar energy 

generation right-of-way applications 

under applicable legal requirements. 

The purpose of such segregation is to 

promote the orderly administration of 

the public lands. Lands segregated 

under this rule will not be subject to 

appropriation under the public land 

laws, including location under the 

Mining Law of 1872 (Mining Law), for 

up to two years from the date of 

publication of notice under this rule, 

subject to valid existing rights, but 

would remain open under the Mineral 

Leasing Act of 1920 (MLA) and the 

Materials Act of 1947 (Materials Act). 

DATES: This rule is effective May 30, 

2013. 

FOR FURTHER INFORMATION CONTACT: Ray 

Brady at (202) 912–7312 for information 

relating to the BLM’s renewable energy 

program or the substance of this final 

rule or Ian Senio at (202) 912–7440 for 

information relating to the rulemaking 

process generally. Persons who use a 

telecommunication device for the deaf 

(TDD) may call the Federal Information 

Relay Service (FIRS) at 1–800–877– 

8339, 24 hours a day, seven days a week 

to contact the above individuals. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Discussion of Public Comments 

III. Discussion of the Final Rule 

IV. Procedural Matters 

I. Background 

On April 26, 2011 (76 FR 23230), the 

BLM published a proposed rule to 

amend the regulations found in 43 CFR 

subpart 2091, Segregation and Opening 

of Lands, and 43 CFR part 2800, Rightsof-Way Under the Federal Land Policy 

and Management Act (43 U.S.C. 1701 et 

seq.) (FLPMA), to allow for the 

temporary segregation of public lands 

from the operation of the public land 

laws, including the Mining Law, within 

the application area of a pending solar 

or wind renewable energy generation 

project, or for public lands identified by 

the BLM under the ROW regulations for 

potential future wind or solar energy 

generation projects. Such segregations 

would be for a period of up to two years, 

subject to valid existing rights, but the 

affected public lands would remain 

open under the MLA and the Materials 

Act. Concurrently with the proposed 

rule, the BLM published an interim 

temporary final rule (ITFR) (76 FR 

23198) that was substantively identical 

to the proposed rule except that the 

ITFR expires two years after its 

publication, or after the completion of 

the notice and comment rulemaking 

process for the proposed rule, 

whichever occurs first. As published, 

the ITFR is effective April 26, 2011 

through April 26, 2013. Today’s action 

will replace the ITFR with this final rule 

on May 30, 2013. 

The purpose of the proposed rule, the 

ITFR, and today’s final rule is to allow 

for the orderly administration of the 

public lands associated with the BLM’s 

consideration of renewable energy 

ROWs. As explained below, the BLM 

seeks to avoid the delays and 

uncertainty that could result from 

encumbrances placed on lands after a 

wind or solar energy generation ROW 

application has been filed or after the 

BLM has identified an area for such 

applications, but before the BLM is able 

to make a decision on any such ROW. 

While such situations are not common, 

they can be disruptive to the processing 

of a wind or solar energy ROW 

application. Today’s action eliminates 

the potential for these conflicts and 

brings a higher level of certainty to the 

BLM’s management of the lands in 

question. The BLM requested public 

comments on the proposed and ITFR 

rulemakings during a 60-day comment 

period. Those comment periods closed 

on June 27, 2011. You can find the 

discussion of comments and the BLM’s 

responses in the Discussion of Public 

Comments section of this rule. 

Segregations under this rule take 

effect immediately upon the BLM’s 

publication of a notice in the Federal 

Register announcing the segregation. 

The rule provides for a segregation 

period (1) of up to two years, (2) until 

the BLM makes a final decision on the 

ROW application, or (3) until the BLM 

publishes a notice terminating the 

segregation, whichever occurs first. 

Under this rule, a BLM State Director 

may extend the segregation period for 

up to an additional two years by issuing 

a Federal Register notice explaining the 

reasons for such extension. The State 

Director may extend a segregation 

period for a ROW application only once, 

for a total segregation of no longer than 

four years. The rule does not authorize 

the BLM to continue the segregation 

after a final decision on a ROW has been 

made. Segregations under this rule do 

not affect valid existing rights in mining 

claims located before any such 

segregation, and this rule does not allow 

the BLM to segregate lands covered by 

ROW applications for purposes other 

than wind or solar energy generation. 

Finally, not all wind or solar ROW 

applications would lead to a segregation 

under this rule, as the BLM may reject 

some applications and others may not 

require segregation because conflicts 

between uses are not anticipated. 

Segregations have been held to be 

‘‘reasonably related’’ to the BLM’s broad 

authority to issue rules related to ‘‘the 

orderly administration of the public 

land laws,’’ see Byron v. United States, 

259 F. 371, 376 (9th Cir. 1919); Hopkins 

v. United States, 414 F. 2d 464, 472 (9th 

Cir. 1969), because they allow the BLM 

to protect an applicant for an interest in 

such lands from ‘‘the assertion by others 

of rights to the lands while the applicant 

is prevented from taking any steps to 

protect’’ its interests because it has to 

wait for the BLM to act on its 

application. Marian Q. Kaiser, 65 I.D. 

485 (Nov. 25, 1958). It is for this 

purpose that existing regulations at 43 

CFR subpart 2091 provide the BLM with 

the discretion to segregate lands that are 

proposed for various types of land 

disposals, such as land sales, land 

exchanges, and transfers of public land 

to local governments and other entities 

under the Recreation and Public 

Purposes Act of 1926. These regulatory 

provisions allowing segregations were 

put in place over the years to prevent 

resource conflicts, including conflicts 

arising from the location of new mining 

claims that could create encumbrances 

on the title of public lands identified for 

transfer out of Federal ownership under 

the applicable authorities during the 

BLM’s consideration of such transfers 

prior to their consummation. 

Segregations under this final rule will 

serve a similar purpose. 


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This rule is necessitated by the 

Administration’s priority efforts to 

facilitate and promote the development 

of renewable energy on public lands and 

the potential for the location of mining 

claims to impede the BLM’s ability to 

carry out its congressional and 

Executive mandates. In Section 211 of 

the Energy Policy Act of 2005 (119 Stat. 

660, Aug. 8, 2005) (EPAct), Congress 

declared that before 2015, the Secretary 

of the Interior should seek to have 

approved non-hydropower renewable 

energy projects on public lands with a 

capacity of at least 10,000 megawatts 

(MW) of electricity. 

After passage of the EPAct, then 

Secretary of the Interior Dirk 

Kempthorne issued several orders 

emphasizing the importance of 

renewable energy development on 

public lands. On January 16, 2009, then 

Secretary Kempthorne issued Secretarial 

Order 3283, ‘‘Enhancing Renewable 

Energy Development on the Public 

Lands,’’ which states that its purpose is 

to ‘‘facilitate the Department’s efforts to 

achieve the goal Congress established in 

Section 211 of the Energy Policy Act of 

2005 to approve non-hydropower 

renewable energy projects on the public 

lands with a generation capacity of at 

least 10,000 megawatts of electricity by 

2015.’’ The Order also declared that 

‘‘the development of renewable energy 

resources on the public lands will 

increase domestic energy production, 

provide alternatives to traditional 

energy resources, and enhance the 

energy security of the United States.’’ 

Shortly thereafter, then Secretary Ken 

Salazar issued Secretarial Order 3285, 

‘‘Renewable Energy Development by the 

Department of the Interior’’ (Mar. 11, 

2009), as amended by Order 3285A1 

(Feb. 22, 2010), which reemphasized the 

development of renewable energy as a 

priority for the Department of the 

Interior (Department). This Order states: 

‘‘Encouraging the production, 

development, and delivery of renewable 

energy is one of the Department’s 

highest priorities. Agencies and bureaus 

within the Department will work 

collaboratively with each other, and 

with other Federal agencies, 

departments, states, local communities, 

and private landowners to encourage 

the timely and responsible development 

of renewable energy and associated 

transmission while protecting and 

enhancing the Nation’s water, wildlife, 

and other natural resources.’’ 

Separate from these specific directives 

related to renewable energy, FLPMA 

directs the BLM to manage the public 

lands for multiple uses, which means 

giving consideration to a combination of 

balanced and diverse resource uses that 

account for long-term needs of future 

generations for renewable and nonrenewable resources, such as recreation, 

range, timber, minerals, watershed, 

wildlife, fish, and natural, scenic, 

scientific, and historic values. In some 

instances, various uses may present 

conflicts. For example, a mining claim 

located within a proposed ROW for a 

utility-scale solar energy generation 

facility could impede the BLM’s ability 

to process the ROW application because 

under the Surface Resources Act (30 

U.S.C. 601 et seq.), the Federal 

Government’s (or its grantee’s) use of 

the surface cannot endanger or 

materially interfere with a mining claim. 

However, FLPMA provides the BLM 

with broad authority and discretion to 

allow some uses to the exclusion of 

others. This final rule is consistent with 

FLPMA’s multiple use mandate because 

it helps reduce the potential for resource 

use conflicts. 

The BLM previously lacked 

regulations specifically authorizing 

segregation in order to maintain the 

status quo on lands during the period 

between when it first publicly 

announced the receipt of a wind or solar 

energy generation ROW application or 

identified an area for such applications, 

and when it made a final decision on a 

wind or solar energy ROW. As a result, 

and unless there was another 

withdrawal or segregation, the public 

lands subject to or identified for such 

applications remained open to 

appropriation under the public land 

laws, including location and entry 

under the Mining Law. This situation 

creates the potential for resource use 

conflicts. In comparison, the BLM does 

not permit new encumbrances on lands 

proposed for exchange or sale after the 

exchange or sale is publicly announced, 

but before it is completed. 

For example, over the past five years, 

the BLM has processed 21 solar and 

wind energy development ROW 

applications (13 solar and 8 wind). New 

mining claims were located on the 

public lands described in two of these 

applications after they were publicly 

announced, but prior to any final 

decision by the BLM. Similarly, over the 

past two years, based on mining claim 

filings with the BLM, 437 new mining 

claims were located within wind energy 

ROW application areas in Arizona, 

California, Idaho, Nevada, Oregon, Utah, 

and Wyoming after those areas, 

consisting of approximately 20.6 million 

acres, were identified by the BLM in the 

2005 Final Programmatic Environmental 

Impact Statement for Wind Energy 

Development (Wind PEIS) (70 FR 

36651). Also, 216 new mining claims 

were located within solar energy ROW 

application areas after those areas were 

identified as Solar Energy Zones in the 

2012 Final Programmatic Environmental 

Impact Statement for Solar Energy 

Development in Six Southwestern 

States (Solar PEIS) (77 FR 44267). In the 

BLM’s experience, some of these mining 

claims are likely to be valid and/or filed 

without consideration of the pending 

ROW application, but others are likely 

to be speculative and not located for 

mining purposes. The latter are likely 

filed for no purpose other than to 

provide a means for the mining claimant 

to compel payment from the ROW 

applicant or grantee in exchange for 

relinquishing the mining claim. While it 

is relatively easy and inexpensive to 

locate a mining claim because a mining 

claim location requires no prior 

approval from the BLM, it can be 

difficult, time-consuming, and costly to 

extinguish a claim. 

The location of a new mining claim 

during the BLM’s review of a ROW 

application could interfere with the 

administration of the public lands 

because it could, on a case-by-case 

basis, result in applicants’ modifying 

their proposals for their use and 

occupancy of the public lands. This is 

because under the Surface Resources 

Act a ROW grantee cannot materially 

interfere with prospecting, mining, or 

processing operations, or reasonably 

incidental use on a mining claim. 

Therefore, a ROW applicant may choose 

to modify its application in response to 

subsequently-located mining claims or 

relocate its proposed surface use to 

avoid potential conflicts with the 

claims. Such modifications or 

relocations could increase the BLM’s 

processing time and costs for the ROW 

application if those changes require the 

BLM to undertake any additional or 

supplemental analyses under the 

National Environmental Policy Act 

(NEPA) (42 U.S.C. 4321 et seq.). For 

these reasons, leaving areas covered by 

a ROW application (which can take over 

a year to process) or areas identified for 

such an application, open to mining 

claim location creates uncertainty that 

could complicate the financing for 

energy project developers and 

institutions that finance such 

development, which ultimately 

interferes with the BLM’s 

administration of the public lands. 

By allowing the BLM to temporarily 

segregate public lands subject to a wind 

or solar energy generation facility ROW 

application or identified for such 

applications, this final rule provides the 

BLM with the necessary regulatory 

authority to minimize conflicts between 

new mining claims and future wind or 

solar energy generation facility ROW 


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applications before the BLM has taken 

action on those applications. This rule 

also facilitates the BLM’s 

implementation of the congressional 

and executive mandates and direction to 

prioritize the development of renewable 

energy resources on public lands. The 

temporary segregation provided for 

under this rule is sufficient to achieve 

these objectives because after the BLM 

authorizes a ROW, any new mining 

claims in the area covered by the ROW 

would be subject to the authorized ROW 

use, and the mining claimant would 

know the location and nature of the 

authorized use before staking a new 

claim. 

II. Discussion of Public Comments 

The BLM received nine comments on 

the proposed rule. Four comments came 

from mining associations and opposed 

the rule; three comments came from 

power associations or companies and 

supported the rule, and the State of 

Alaska sent comments from two 

different program offices, neither of 

which supported the rule as proposed 

and suggested changes. Below is a 

discussion of the significant issues 

raised by commenters. 

Intent of the rule. One commenter 

stated that the BLM is placing a higher 

value on solar and wind uses than on 

other uses of the public land in 

violation of FLPMA. This is incorrect. 

FLPMA provides the BLM with the 

discretion to manage public lands for 

multiple uses. The solar and wind 

energy generation ROWs that are the 

subject of this rule fit squarely within 

FLPMA’s multiple use mandate. 

Moreover, the BLM’s emphasis on such 

projects is consistent with applicable 

statutes, directives and policy. The 

EPAct directs the BLM to expedite 

energy related projects on public lands. 

Executive Order 13212 directs the BLM 

to accelerate the completion of projects 

that will increase the production of 

energy. Secretarial Order 3285A1 

establishes renewable energy 

development as a priority for the 

Department. Therefore, the BLM did not 

revise the rule in response to this 

comment. 

Another commenter stated that the 

rule presumes the existence of land use 

conflicts where none may exist. This is 

incorrect. The rule does not presume 

conflicts exist, but rather the purpose of 

the rule is to prevent land use conflicts 

from arising. If there is no potential for 

conflict, the segregation authority 

available under this rule will not be 

exercised. The commenter points out 

that the BLM has other tools to address 

nuisance mining claims located after the 

filing of a ROW application (i.e., those 

located for the sole purpose of 

extracting something from the ROW 

applicant). The commenter contends 

that existing regulations permit BLM to 

address such claims through validity 

examinations, which would permit BLM 

to declare a claim invalid under certain 

circumstances. However, validity 

examinations take considerable time 

and expense and could delay important 

energy projects if they were the tool 

used to address all of the claims located 

after a proposed wind or solar energy 

ROW application is publicly announced 

by the BLM, but before the BLM is able 

to complete its review and take action 

on that application. The purpose of 

segregations under this rule is to allow 

the BLM to maintain the status quo 

while it processes a ROW application, 

in order to try to avoid delays in energy 

development that has been prioritized 

by both Congress and the Department. 

Finally, one commenter proposed 

amending section 2091.3–1(e)(1), as 

proposed by the BLM, to read as 

follows: 

In addition, the Bureau of Land 

Management may also segregate public lands 

that it identifies, in conjunction with the 

preparation or revision of a resource 

management plan or other planning process, 

for potential rights of way for electrical 

generation from wind or solar sources. The 

identification of such land will involve 

consultation with the public and opportunity 

for public comment. 

The comment suggests that this would 

clarify the rule by showing that: 

(1) The intent of the rule is narrow; 

(2) Public participation is part of the 

process; and 

(3) Planning is part of the process. 

While the BLM agrees with these 

three points, the BLM made no changes 

in the final rule in response to this 

comment. As drafted, the rule is narrow; 

it applies only to public lands either 

covered by a ROW application or lands 

that the BLM specifically identifies for 

such applications. In addition, the 

suggested revisions are already part of 

the BLM’s planning regulations (43 CFR 

subpart 1610) and thus would be 

duplicative if added to today’s final 

rule. Public lands available for wind 

and solar energy generation are 

identified through the BLM’s land use 

planning process, which includes a 

robust public participation process. 

Excessive impact of the rule. Several 

commenters stated that the proposed 

rule would authorize BLM managers to 

segregate land even if there is no known 

interest in developing renewable energy. 

The commenters cite the statement ‘‘or 

public lands identified by the BLM for 

a pending or future wind or solar energy 

ROW authorization’’ (76 FR 23232) as 

establishing this potential for arbitrary 

segregations. The scenario outlined by 

these commenters is contrary to the 

language of the rule, which limits 

segregations to those circumstances 

where there is an express interest in 

such development (e.g., when there is a 

site-specific solar or wind energy ROW 

application pending), or where the BLM 

has identified an area as having the 

potential for such applications (e.g., 

when the BLM initiates a competitive 

process for solar or wind development 

on particular lands). For this reason, the 

final rule has not been revised in 

response to these comments. 

One commenter asserted that the rule 

is an over-reaction to a few bad actors. 

As explained below, the final rule is 

narrow. It only limits the location of 

mining claims after the segregation 

under this rule is announced and does 

not affect previously located claims. 

Moreover, segregations under this rule 

are not automatic; the BLM will only 

effect segregations on a case-by-case 

basis when it determines segregation to 

be necessary for the orderly 

administration of the public lands. 

One commenter stated that the BLM 

implies that it will use significant 

resources in its planning process for 

wind and solar to support ‘‘sweeping 

withdrawals using wind and solar as an 

excuse.’’ The BLM does not intend to 

conduct sweeping withdrawals related 

to wind and solar energy ROW grants. 

First, the BLM’s withdrawal authority 

and regulations are not affected by this 

rule. Second, as explained above in 

response to the comment regarding 

extending the segregations, the 

temporary segregations authorized by 

the rule achieve the BLM’s objectives 

related to the orderly processing of such 

applications, thereby making 

withdrawals unnecessary. History 

indicates that the BLM has not proposed 

sweeping withdrawals. Also, as noted 

above, the BLM will exercise its 

authority under this rule on a case-bycase basis. For example, if the BLM 

determines that the potential for conflict 

associated with a particular ROW is 

low, then the BLM will not segregate the 

land. Moreover, the 2005 Wind PEIS 

and the 2012 Solar PEIS already contain 

a comprehensive analysis of areas with 

potential for wind or solar energy 

development, contrary to the 

commenter’s suggestion that significant 

additional planning resources will need 

to be devoted to such efforts in the near 

term. 

Another commenter voiced a concern 

that the segregations would take place 

without any opportunity for public 

input and that the rule should require 

the BLM to explain, in writing, why 


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Federal Register / Vol. 78, No. 83 / Tuesday, April 30, 2013 / Rules and Regulations 25207 

there is a need for a segregation. As 

explained in the proposed rule and the 

ITFR, the purpose of the temporary 

segregations under the rule is narrow. 

Segregations are intended to maintain 

the status quo after a wind or solar 

energy ROW application has been filed 

or the BLM has identified an area as 

appropriate for such applications. The 

status quo can only be maintained if the 

segregations are effective immediately; 

otherwise, actions could be taken that 

interfere with the underlying purposes 

of the segregation, the orderly 

administration of the public lands. This 

is why all of the BLM’s existing 

segregation authorities make the 

segregation effective immediately (i.e., 

none are subject to public comment). 

Finally, one commenter pointed out 

that solar panel fields will prevent other 

land uses and that this would conflict 

with the FLPMA’s mandate to manage 

public lands for multiple use. The 

commenter goes on to say that the 

proposed rule improperly singles out 

locatable minerals. The BLM agrees that 

solar panels may prevent some uses of 

the same piece of land during the same 

period of time, but the BLM has 

discretion as to what activities it allows 

on any parcel of land at any particular 

time. FLPMA’s multiple use mandate 

does not require all uses to be permitted 

on every acre. Thus, the final rule does 

not impermissibly single out locatable 

minerals; it simply gives the BLM the 

ability to temporarily segregate lands 

identified for or covered by a wind or 

solar energy ROW application from the 

operation of the Mining Law because 

the location of a mining claim does not 

require BLM approval and could 

interfere with the BLM’s processing of 

such ROW application. The final rule 

was not revised as a result of this 

comment. 

Length of Segregations. One 

commenter stated that segregations 

under the rule will become permanent. 

It cited the BLM-managed withdrawals 

in Alaska, which the Alaska Native 

Claims Settlement Act authorized, as 

well as other closures to mineral entry 

pending designation of conservation 

system units. The situation for these 

long term closures is unique to Alaska 

pursuant to other statutory and 

regulatory authority. The segregations 

permitted by this rule, on the other 

hand, are temporary; lands would not be 

closed to the location of mining claims 

beyond the maximum timeframes 

established in this rule. The two-year 

timeframe, with a possible one time 

extension of up to two years, under this 

rule is consistent with other segregation 

authorities. 

Another commenter believes the fouryear limit for a segregation is too short. 

It cited its own application which is 

currently the subject of an 

environmental impact statement (EIS) 

having a current schedule lasting four 

years and two months. The commenter 

asked that the final rule extend the time 

period to three years and allow an 

additional three-year extension. It based 

its timeframe on the BLM’s Wind 

Energy Development Policy (IM 2009– 

043), which establishes an initial threeyear time period for energy site testing 

and monitoring. The commenter goes on 

to say that the segregations should 

continue for the term of the ROW grant 

if the BLM approves the project. In 

addition, it urges the BLM to not 

approve discretionary mineral activities 

on public lands overlain by a renewable 

energy ROW and to continue the 

segregation so as to prohibit entry under 

the Mining Law after the ROW grant is 

issued. 

The BLM believes that the two-year 

timeframe, with the possibility of a onetime extension, for segregations under 

this rule provides sufficient time for the 

agency to make decisions on most 

applications. With respect to the 

commenter’s suggestion that the rule 

allow for segregations to continue after 

the ROW grant is issued, the BLM notes 

two responses. First, after the BLM 

issues a solar or wind energy ROW 

grant, the ROW grant holder has a 

priority right over any subsequently 

located mining claim(s), which makes 

continuing the segregation during the 

term of a ROW grant unnecessary. With 

respect to discretionary mineral 

activities under the MLA or Materials 

Act, after issuance of a wind or solar 

ROW grant, the BLM would not 

authorize such activities for lands 

covered by such a ROW grant unless the 

activities will not have an adverse 

impact on the pre-existing ROW grant. 

Second, segregations are by definition 

temporary. The continuation of the 

segregation urged by the commenter 

would be tantamount to a withdrawal, 

which is beyond the scope of this rule 

and subject to other legal authorities 

and requirements. 

Authority. One commenter stated that 

the BLM lacks the authority to issue the 

rule. The BLM disagrees. FLPMA (43 

U.S.C. 1740) states ‘‘[t]he Secretary, 

with respect to the public lands, shall 

promulgate rules and regulations to 

carry out the purposes of this Act.’’ This 

section grants the Secretary broad 

regulatory powers to administer the 

public lands. As explained above, the 

orderly administration of the public 

lands includes the authority to segregate 

lands in order to avoid resource use 

conflicts. The commenter also stated 

that FLPMA does not allow segregation 

for the BLM’s convenience. However, as 

explained above, the purpose of this 

rule is not administrative convenience, 

but rather to maintain the status quo 

and avoid land use conflicts that would 

restrict the efficient use of the public 

lands while the BLM is considering a 

wind or solar energy ROW application, 

but before it actually makes a decision 

on a grant. This is because, as explained 

above, the staking of a mining claim 

after the location of a wind or solar 

energy facility application is 

announced, but before a decision is 

made on the application, potentially 

interferes with or delays the BLM’s 

evaluation of the proposed surface use. 

By preventing such conflicts, the rule 

facilitates the BLM’s administration of 

the public lands. Moreover, after the 

temporary segregation period concludes 

under this rule, the covered lands 

would be open again to location under 

the Mining Law. 

Make a quick decision. Another 

commenter stated that the rule should 

require the BLM to decide ‘‘immediately 

upon receiving an application’’ whether 

to segregate the land under application. 

In the commenter’s view, this would 

prevent speculative mining claims. A 

provision in the rule stating that the 

BLM would make an immediate 

decision regarding segregation would 

also eliminate what the commenter 

believes is a lack of clarity in the 

proposed rule as to when, or if, the BLM 

would segregate lands after a renewable 

energy ROW application has been filed. 

The commenter acknowledged that the 

BLM might not segregate lands covered 

by an application if it considers the 

potential for conflicts with new mining 

claims to be small. As explained above, 

the purpose of the rule is not to 

segregate all lands subject to a wind or 

solar energy ROW application, but 

rather to temporarily segregate the lands 

covered by such applications when the 

BLM determines that it is necessary for 

the orderly administration of the public 

lands. The completed Wind and Solar 

PEISs give the BLM a good indication of 

whether and where the BLM needs to 

segregate lands when it receives a wind 

or solar energy ROW application. For 

many projects the BLM may very well 

determine that no segregation is 

necessary. For example, segregations 

associated with a solar or wind energy 

application would not be necessary in 

areas with relatively low mineral 

development potential. That said, given 

the analyses contained in the Wind PEIS 

and Solar PEIS and other information 

available, the BLM should be able to 


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1Note: The 2006 Mineral Policy was superseded 

by the 2008 Bureau of Land Management Energy 

and Mineral Policy, signed by BLM Director 

Caswell. This rule is also consistent with the 2008 

policy’s expressed preference that the lands be open 

to mining claim filings. 

identify areas where there is the 

potential for conflicts between solar and 

wind energy development and mining 

claims, mineral leases or sales, or other 

land disposals determine that a 

segregation is necessary, and issue the 

corresponding segregation notice 

quickly. The BLM has provided 

additional guidance to our field offices 

on the use of the segregation authority 

in the ITFR, and that guidance will be 

carried forward to implement this final 

rule. 

Narrow the rule. One comment asked 

the BLM to narrow the rule to prevent 

‘‘anti-mining groups and others’’ from 

filing renewable ROW applications over 

existing mining claims. The final rule 

was not revised as a result of this 

comment because such filings would 

have no impact. Valid existing mining 

claims could not be affected by 

segregations under the rule, as they 

would pre-date the wind or solar ROW 

application and any associated 

segregation. Moreover, the BLM’s 

policies require wind and solar energy 

generation ROW applicants to show that 

their application represents a serious 

proposal before the BLM accepts the 

application, let alone consider 

segregating the land covered by it. 

Consistent with past practice and as 

currently outlined in Instruction 

Memorandum (IM) 2011–061 the BLM 

considers a number of criteria before 

processing an application, which 

include a requirement that proponents 

present a detailed plan of development 

for any proposed Project. Satisfaction of 

these requirements is a prerequisite to 

the BLM’s acceptance of an application 

for processing, and by extension 

practically provides a threshold as to 

when the BLM will initiate segregation 

for a particular application. As a result, 

segregations would only occur for 

projects supported by substantial 

applications, thus the hypothetical 

applications identified by the 

commenter would be unlikely to meet 

BLM’s criteria for acceptance, let alone 

be considered for segregations. In fact, 

since the effective date of the ITFR, the 

BLM has segregated only three areas 

with pending solar energy ROW 

applications and four areas with 

pending wind energy applications. 

Another commenter asked the BLM to 

narrow the rule so that segregations are 

allowed only when mining claims are 

located after the application. 

Specifically, this group asked that there 

be no segregation for claims ‘‘that were 

located prior to the submission of a[n] 

application * * *.’’ In other words, the 

group requests that where mining 

claims had been filed prior to the filing 

of a ROW renewable energy application 

that segregations not be allowed. No 

changes to the final rule were necessary 

as a result of this comment because, as 

explained above, segregations under this 

rule would not affect valid mining 

claims located prior to the publication 

of a segregation notice in the Federal 

Register. Practically, this means that 

valid mining claims located prior to the 

submission of a wind or solar energy 

generation ROW application for a 

particular area or the identification of 

such area by the BLM for a ROW 

application would not be affected by 

segregation under this rule. 

One commenter suggested that the 

BLM narrow the scope of the rule by 

using stipulations rather than 

segregations to prevent the filing of 

mining claims. As explained above, 

segregations under this rule would not 

affect valid existing mining claims. 

Moreover, the commenter did not 

identify a mechanism by which the 

BLM could impose stipulations that 

would address potential resource use 

conflicts created by mining claims that 

are located after a wind or solar energy 

application is announced, as the 

location of such claims occurs without 

BLM approval. The same commenter 

also views this rule as inconsistent with 

the BLM’s 2006 Energy and Non-energy 

Mineral Policy. However, the 2006 

policy simply expresses a preference 

that lands remain open to the location 

of mining claims unless actions closing 

lands are clearly justified.1 The final 

rule is consistent with this preference. 

Impact on some small-scale miners. 

One commenter stated that the cost of 

validity examinations would create a 

burden on small-scale miners. This rule 

does not affect valid existing mining 

claims or those claims located prior to 

the publication of a segregation notice 

under this rule, nor does it modify the 

surface management regulations or 

change the circumstances under which 

validity examinations are required. 

To the extent the commenter is 

referring to the circumstances where a 

new Plan of Operations or Notice for a 

prior mining claim in a segregated area 

is filed with the BLM during the twoyear segregation period, the BLM has 

the discretion under the surface 

management regulations (43 CFR 

3809.100(a)) to require the preparation 

of a mineral examination report before 

it processes the Plan of Operations or 

accepts the filed Notice. With respect to 

any particular Plan of Operation or 

Notice, the BLM would separately 

determine, on a case-by-case basis and 

consistent with the requirements of the 

surface management regulations, 

whether to require a validity 

determination for such Plan or Notice. 

If the BLM requires a validity 

examination, the operator is responsible 

for the cost of the examination and 

report. However, knowing this it 

possible that operators would choose 

not to file a Notice or Plan of Operations 

during the segregation period for 

existing claims in segregated areas in 

order to avoid facing a validity 

examination, which in fact appears to be 

what has happened: For FYs 2009 and 

2010, 19 Plans of Operations (10 in solar 

application areas and 9 in wind 

application areas) and 50 Notices (12 in 

solar application areas and 38 in wind 

application areas) were filed with the 

BLM. No Plans of Operation or Notices 

were filed in FYs 2011 and 2012, after 

the ITFR was implemented. Moreover, 

the evaluation of a Plan of Operations or 

Notice for a mining claim filed before a 

segregation takes place would be no 

different from the evaluation of such a 

claim where a segregation did not exist. 

Therefore, the BLM has not modified 

the final rule in response to this 

comment. 

Working collaboratively. One 

commenter suggested that instead of 

segregations, the BLM require parties to 

work collaboratively. The BLM agrees 

that in many cases this is a preferred 

and effective approach. If existing 

mining claims fall within the area of a 

proposed renewable energy project, the 

BLM intends to pursue collaboration 

among the parties to resolve any 

resource use conflicts. At the same time, 

this final rule provides a valuable tool 

for reducing the potential for resource 

use conflicts that could occur after the 

BLM announces the receipt of a wind or 

solar energy application, but before the 

BLM completes its processing of that 

application, and thereby promotes 

collaboration. 

Alaska-specific issues. Commenters 

indicated concern with the way the rule 

would address State filings and 

withdrawals under the Alaska National 

Interest Lands Conservation Act 

(ANILCA). This rule does not create 

problems with respect to State filings 

and withdrawals under ANILCA. First, 

the rule permits segregations under 

certain circumstances, which simply 

provides a tool for the BLM’s orderly 

administration of the public lands that 

can be invoked on a case-by-case basis 

in connection with wind or solar energy 

development. The authority provided by 

this rule would not affect or amend 

existing withdrawals or withdrawal 


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Federal Register / Vol. 78, No. 83 / Tuesday, April 30, 2013 / Rules and Regulations 25209 

2 ‘‘ ‘Significant regulatory action’ means any 

regulatory action that is likely to result in a rule that 

may: (1) Have an annual effect on the economy of 

$100 million or more or adversely affect in a 

material way the economy...; (2) Create a serious 

inconsistency or otherwise interfere with an action 

taken or planned by another agency; (3) Materially 

alter the budgetary impact of entitlements, grants, 

user fees, or loan programs...; or (4) Raise novel 

legal and policy issues arising out of legal 

mandates, the President’s priorities, or... this 

Executive Order.’’ Exec. Order No. 12866, 58 FR 

51738 (Oct. 4, 1993). 

authorities in Alaska or elsewhere. 

Second, and to the extent the 

commenter was also referring to lands 

selected under the Alaska Native Claims 

Settlement Act (ANCSA), the BLM does 

not anticipate that BLM lands selected 

for conveyance in Alaska are likely to be 

included in any renewable energy ROW 

applications. Part of the process of 

identifying appropriate locations for 

wind or solar projects includes an 

assessment of the land status of a project 

site under consideration. Therefore, 

theoretically, while there could be a 

solar or wind energy ROW application 

on lands previously selected where the 

selection has yet to be approved for 

conveyance, the BLM believes this is 

unlikely to occur. Put another way, the 

fact that a parcel had been selected 

under ANCSA could call into question 

the appropriateness of a proposed site 

for wind or solar energy development. 

Moreover, as noted above, segregations 

under this rule are not automatic and 

the authority will only be invoked when 

circumstances dictate as outlined above. 

Furthermore, the segregation of land 

under this rule would only be for a twoyear period, with the potential for a onetime two-year extension. Finally, the 

BLM will follow ANILCA Section 

906(k)(1), which requires state 

concurrence for any ROW filings made 

on lands selected by the State as part of 

the review process. 

Two commenters pointed out that 

ANILCA withdrawals exceeding 5,000 

acres require congressional approval 

within a year. One of the commenters 

added that segregation is the equivalent 

of a withdrawal and requires the same 

congressional action as a withdrawal. 

These assertions are incorrect. 

Segregations under this rule are not 

withdrawals. Temporary segregations 

are different from withdrawals in that 

segregations prevent certain uses of 

public lands for a short period of time, 

not to exceed four years for any type of 

segregation, while withdrawals are 

generally for longer terms (generally 20 

years) and must be approved by an 

Assistant Secretary or a higher ranked 

position within the Department. 

III. Discussion of the Final Rule 

This rule revises 43 CFR 2091.3–1 and 

2804.25 by adding language that allows 

the BLM to segregate lands if the BLM 

determines it is necessary for the 

orderly administration of the public 

lands. This authority to segregate lands 

is limited to lands included in a 

pending or future wind or solar energy 

ROW application, or public lands the 

BLM identifies for such applications. If 

segregated under this rule, such lands, 

during the limited segregation period, 

will not be subject to appropriation 

under the public land laws, including 

location under the Mining Law, but 

would remain open under the MLA and 

the Materials Act, subject to valid 

existing rights. 

The final rule does not differ from the 

proposed rule or the ITFR in any 

substantive way. Some language in the 

final rule has been revised to shorten 

sentences to make the rule easier to read 

and understand and to cite statutes 

already discussed in the proposal and 

ITFR. Because today’s rule replaces the 

ITFR, the ITFR’s provisions limiting 

segregations to two years (see sections 

2091.3–1(e)(3) and 2804.25(e)(3)) are no 

longer necessary and have been 

removed from the final rule. See the 

discussion below of the authority for a 

BLM State Director to extend a 

segregation, with sufficient justification, 

for an additional period not to exceed 

two years. 

Segregations under this rule end after 

two years (unless extended for up to two 

additional years) and the lands 

automatically reopen to appropriation 

under the public land laws, including 

the mining laws. Segregations under 

this rule may end sooner if, prior to the 

end of the two-year period: 

(1) The BLM issues a decision on the 

wind or solar energy ROW application 

associated with the segregation; or 

(2) The BLM publishes a Federal 

Register notice terminating the 

segregation. 

(3) This final rule allows a BLM State 

Director to extend the segregation for up 

to an additional two years if a BLM 

State Director determines and 

documents in writing, prior to the 

expiration of the segregation, that an 

extension of the segregation is necessary 

for the orderly administration of the 

public lands. If the State Director 

determines that an extension is 

necessary, the BLM will publish an 

extension notice in the Federal Register. 

The extension of the segregation would 

not be for more than two years. The 

maximum total segregation period 

under the rule may not exceed four 

years. 

IV. Procedural Matters 

Executive Order 12866, Regulatory 

Planning and Review 

This rule is not a significant 

regulatory action 2 and is not subject to 

review by the Office of Management and 

Budget under Executive Order 12866. 

The rule provides the BLM with 

regulatory authority to segregate public 

lands included within a pending or 

future wind or solar energy generation 

ROW application, or public lands 

identified by the BLM for a potential 

future wind or solar energy generation 

ROW authorization, from appropriation 

under the public land laws, including 

location under the Mining Law, but not 

the MLA or the Materials Act, if the 

BLM determines that segregation is 

necessary for the orderly administration 

of the public lands. To assess the 

potential economic impacts, the BLM 

made some assumptions concerning 

when and how often this segregation 

authority may be exercised. The 

purpose of any segregation would be to 

facilitate the orderly administration of 

the public lands by avoiding potential 

resource use conflicts between 

renewable energy developments and 

mining claims located after the lands for 

such development have been identified. 

Wind—Wind energy ROW site-testing 

and development applications are 

widely distributed across many western 

states. Based on the BLM’s recent 

experience processing wind energy 

ROW applications, it is anticipated that 

approximately 25 percent of the lands 

with current wind energy ROW 

applications will reach the processing 

stage where a Notice of Intent (NOI) is 

issued. Most of the public lands with 

pending wind energy ROW applications 

are currently managed for multiple 

resource use, including being open to 

mineral entry under the Mining Law. In 

fiscal years (FY) 2009 and 2010, more 

than 400 new mining claims were 

located within wind energy ROW 

application areas in Arizona, California, 

Idaho, Nevada, Oregon, Utah, and 

Wyoming. There were about 50 

claimants or an average of about eight 

claims per claimant. Without trying to 

identify specific locations of new 

mining claims located within those 

application areas, based on the 

economic analysis prepared in 2011 for 

the proposed rule, the BLM assumed a 

quarter of those new mining claims, or 

over 100 new mining claims, would be 

prevented from being located within 

wind application areas that would be 

segregated under this rule and that 

approximately 300 new claims would be 

filed. However, since implementing the 

ITFR to segregate lands where the BLM 


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25210 Federal Register / Vol. 78, No. 83 / Tuesday, April 30, 2013 / Rules and Regulations 

3With respect to any particular Plan of Operation 

or Notice that might be filed in areas segregated 

under the rule, the BLM would separately 

determine, on a case-by-case basis and consistent 

with the requirements of 43 CFR 3809.100(a), 

whether to require a validity determination for such 

Plan or Notice. 

has reached the NOI stage of the 

applications for wind energy ROW 

authorizations, only 13 new mining 

claims have been filed in three states on 

the non-segregated areas with wind 

energy application areas. 

The actual number of claimants 

affected will likely be less than the 

number of claims filed, because a single 

claimant typically files and holds 

multiple mining claims. Of the new 

mining claims filed within the wind 

energy ROW application areas in FYs 

2009 through 2012, there was an average 

of about eight mining claims per 

claimant. Assuming that there was 

nothing unique about the number of 

claims and distribution of claims per 

claimant for those years, the BLM 

estimates that 14 entities would be 

potentially precluded from filing new 

mining claims on lands that would be 

segregated in the future within the 

identified wind energy ROW 

application areas under this rule. For 

these entities, the economic impacts of 

the segregation are the delay in when 

they could locate their mining claims 

and a potential delay in the 

development of such claims because 

such development would be subject to 

any ROW grants issued during the 

temporary segregation period. However, 

a meaningful estimate of the value of 

such delays is difficult to quantify given 

the available data as it depends on 

commercial viability of any individual 

claim. Also, the location of a mining 

claim is an early step in a long process 

that may or may not ultimately result in 

revenue generating activity for the 

claimant. 

The other situation in which entities 

might be affected by the segregation 

provision is if a new Plan of Operations 

or Notice for a prior mining claim is 

filed with the BLM during a two-year 

segregation. In such a situation, the 

BLM has the discretion under the 

Surface Management Regulations (43 

CFR subpart 3809) to require the 

preparation of a mineral examination 

report before it processes the Plan of 

Operations or accepts the filed Notice. 

If required, the operator is responsible 

for paying the cost of the examination 

and report. However, the evaluation of 

a plan of operations or notice for a 

mining claim filed before a segregation 

takes place would be no different than 

the evaluation of such a claim where a 

segregation did not exist. 

In 2009 and 2010, nine Plans of 

Operations and 38 Notices were filed 

with the BLM on claims located within 

wind ROW application areas. No plans 

or notices were filed in 2011 or 2012. 

Assuming; (1) a quarter of those filings 

were on lands segregated under this 

rule, (2) the number of Plan and Notice 

filings received between FYs 2009 and 

2012 is representative of the number of 

filings that might occur in the future on 

segregated lands, and (3) the BLM 

required mineral examination reports to 

determine claim validity on all Plans 

and Notices filed on lands that may be 

segregated, the BLM estimates that two 

entities might be affected by this rule 

over a two-year period.3 However, it is 

also possible that operators would 

choose not to file a Notice or Plan of 

Operations during the segregation 

period in order to avoid facing a validity 

examination. Should the BLM require 

the preparation of mineral examination 

reports while the lands are segregated to 

determine mining claim validity, the 

entity filing the Plan or Notice would be 

responsible for the cost of making that 

validity determination. Understanding 

that every mineral examination report is 

unique and the costs vary accordingly, 

the BLM assumes an average cost of 

$100,000 to conduct the examination 

and prepare the report. Based on the 

number of Plans and Notices filed 

within the wind energy right-of-way 

application areas in FY 2009 and 2010, 

and the number of entities anticipated 

to be affected, the BLM estimates the 

total cost of this provision would be 

about $100,000 per year. 

Solar—Like wind, most of the public 

lands with pending solar energy ROW 

applications are currently managed for 

multiple resource use, including 

mineral entry under the Mining Law. 

Where the BLM segregates lands from 

mineral entry, claimants would not be 

allowed to locate any new mining 

claims during the segregation period. 

Over the past two years, 26 new mining 

claims were located within solar energy 

ROW application areas that were not 

segregated by the ITFR. For the prior 

two years (2009 and 2010), over 200 

new mining claims were filed. Based on 

the BLM’s recent experience processing 

solar energy ROW applications, the 

BLM anticipates that approximately 25 

percent of the lands with current solar 

energy ROW applications would reach 

the processing stage where an NOI is 

issued and therefore the BLM could 

segregate the areas. Without trying to 

identify which ROWs would be granted 

or the specific locations of new mining 

claims within those application areas, 

the BLM assumes based on the 

economic analysis prepared in 

connection with this rule that a quarter 

of those new mining claims, or about 50 

new mining claims, would be prevented 

from being located within solar ROW 

application areas that could be 

segregated under this rule and that 

approximately 150 new claims would be 

located in the non-segregated solar 

energy application areas. 

The actual number of claimants 

affected will likely be less than 50 

because a single claimant typically 

locates and holds multiple mining 

claims. Of the existing mining claims 

located within solar energy ROW 

application areas, there was an average 

of about eight mining claims per 

claimant. Assuming that there was 

nothing unique about the number and 

distribution of claims per claimant, the 

BLM estimates six to seven entities 

would potentially be precluded from 

locating new mining claims on lands 

segregated within the identified solar 

energy ROW application areas under the 

rule change. For these entities, the 

economic impacts of the segregation 

would be the delay in when they could 

locate their mining claim and a 

potential delay in the development of 

such claim because such development 

would be subject to any ROW grants 

issued during the temporary segregation 

period. However, a meaningful estimate 

of the value of such delays is difficult 

to quantify given the available data as it 

depends on the commercial viability of 

any individual claim and the fact that 

the location of a mining claim is an 

early step in a long process that may or 

may not ultimately result in revenue 

generating activity for the claimant. 

As with wind, the other situation in 

which entities might be affected by 

these segregation provisions is when a 

new Plan of Operations or Notice for an 

existing mining claim is filed with the 

BLM during a two-year segregation for 

a solar project. In such a situation, the 

BLM has the discretion under the 

Surface Management Regulations (43 

CFR subpart 3809) to require a mineral 

examination report before it approves 

the Plan of Operations or accepts the 

filed Notice. If required, the operator is 

responsible to pay the cost of the 

examination and report. However, the 

evaluation of a plan of operations or 

notice for a mining claim filed before a 

segregation takes place would be no 

different than the evaluation of such a 

claim where a segregation did not exist. 

For FYs 2009 and 2010, 10 Plans of 

Operations and 12 Notices were filed 

with the BLM for existing claims within 

solar ROW application areas. No Plans 

of Operation or Notices were filed in 

FYs 2011 and 2012. Assuming: (1) A 

quarter of those filings in 2009 and 2010 


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Federal Register / Vol. 78, No. 83 / Tuesday, April 30, 2013 / Rules and Regulations 25211 

4With respect to any particular Plan of Operation 

or Notice that might be filed in areas segregated 

under the rule, the BLM would separately 

determine, on a case-by-case basis and consistent 

with the requirements of 43 CFR 3809.100(a), 

whether to require a validity determination for such 

Plan or Notice. 

were on lands now segregated under 

this rule; (2) the number of Plan and 

Notice filings received in FYs 2009 

through 2012 is representative of the 

number of filings that might occur on 

lands that may be segregated; and (3) the 

BLM required mineral examination 

reports to determine claim validity on 

all Plans and Notices filed within 

segregated lands, the BLM estimates one 

entity might be affected by this rule.4

However, it is also possible that 

operators would choose not to file a 

notice or plan of operations during the 

segregation period in order to avoid 

facing a validity examination. Should 

the BLM require a mineral examination 

while the lands are segregated to 

determine mining claim validity, the 

entity filing the Plan or Notice would be 

responsible for the cost of making that 

validity determination. As above, the 

BLM assumes an average cost of 

$100,000 to conduct the examination 

and prepare the report. Based on the 

number of Plans and Notices filed 

within the solar energy ROW 

application areas in the past four years, 

and the number of entities anticipated 

to be affected, the BLM estimates the 

total cost of this provision would 

average about $50,000 per year. 

It is not possible to estimate the 

number of future ROWs for wind or 

solar energy developments that could be 

filed on areas identified as having 

potential for either of these sources of 

energy. This is because there are many 

variables that could have an impact on 

such filings. Such variables include: the 

quantity and sustainability of wind at 

any one site, the intensity and quantity 

of available sunlight, the capability of 

obtaining financing for either wind or 

solar energy projects, the proximity of 

transmission facilities that could be 

used to carry the power generated from 

a specific wind or solar energy project, 

and the topography of the property 

involved. The number of mining claims 

would also be based on speculation as 

to the mineral potential of a given area, 

access to markets, potential for 

profitability, and a host of other geologic 

factors, such as type of mineral, depth 

of the mineral beneath the surface, 

quantity and quality of the mineral, and 

other such considerations. We used an 

analysis of activity in 2009 and 2010 to 

predict the amount of activity that 

would occur or be prevented in 2011 

and 2012. The actual activity in 2011 

and 2012, when the ITFR was in effect, 

was much less than predicted. However, 

we consider our use of the 2009 and 

2010 data to be a reasonable basis for 

the economic impacts of this rule. 

Based on this analysis, the BLM 

concludes that this rule does not have 

an annual effect of $100 million or more 

on the economy. It does not adversely 

affect in a material way the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities. This rule does not create 

a serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency. This rule 

does not alter the budgetary effects of 

entitlements, grants, user fees or loan 

programs, or the rights or obligations of 

their recipients; nor does it raise novel 

legal or policy issues. 

National Environmental Policy Act 

The BLM has determined that this 

rule is administrative in nature and 

involves only procedural changes 

addressing segregation requirements. 

Temporary segregations under this rule 

would result in no new surface 

disturbing activities and, therefore, 

would have no effect on ecological or 

cultural resources. Potential effects from 

the wind and/or solar ROWs associated 

with such segregations would be 

analyzed as part of the site-specific 

NEPA analysis for those activities. In 

promulgating this rule, the government 

is conducting routine and continuing 

government business of an 

administrative nature. As result, it is 

categorically excluded from 

environmental review under section 

102(2)(C) of NEPA, pursuant to 43 CFR 

46.205 and 46.210(f), (i). The rule does 

not meet any of the extraordinary 

circumstances criteria for categorical 

exclusions listed at 43 CFR 46.215. 

Under Council on Environmental 

Quality regulations (40 CFR 1508.4) and 

the environmental policies and 

procedures of the Department, the term 

‘‘categorical exclusion’’ means a 

category of actions which do not 

individually or cumulatively have a 

significant effect on the human 

environment and which has been found 

to have no such effect on procedures 

adopted by a Federal agency and for 

which, therefore, neither an 

environmental assessment nor an 

environmental impact statement is 

required. 

Regulatory Flexibility Act 

The Congress enacted the Regulatory 

Flexibility Act (RFA) of 1980, as 

amended, (5 U.S.C. 601–612), to ensure 

that Government regulations do not 

unnecessarily or disproportionately 

burden small entities. The RFA requires 

a regulatory flexibility analysis if a rule 

would have a significant economic 

impact, either detrimental or beneficial, 

on a substantial number of small 

entities. The RFA requires agencies to 

analyze the economic impact of 

regulations to determine the extent to 

which there is anticipated to be a 

significant economic impact on a 

substantial number of small entities. 

The BLM anticipates that this rule could 

potentially affect a few entities that 

might otherwise have located new 

mining claims on public lands covered 

by a wind or solar energy facility ROW 

applications either currently pending or 

filed in the future. Based on the 

economic analysis prepared for this 

rule, the BLM further anticipates that 

most of these entities would be small 

entities as defined by the Small 

Business Administration; however, as 

explained in this preamble and in the 

proposed rule, the BLM does not expect 

the potential impact to be significant. 

Therefore, the BLM has determined 

under the RFA that this rule will not 

have a significant economic impact on 

a substantial number of small entities. A 

copy of the analysis that supports this 

determination is available at the office 

listed under the ADDRESSES section of 

this preamble. 

Small Business Regulatory Enforcement 

Fairness Act 

For the same reasons as discussed 

under the Executive Order 12866, 

Regulatory Planning and Review section 

of this preamble, this rule is not a 

‘‘major rule’’ as defined at 5 U.S.C. 

804(2). That is, it will not have an 

annual effect on the economy of $100 

million or more; it will not result in 

major cost or price increases for 

consumers, industries, government 

agencies, or regions; and it will not have 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. 

Unfunded Mandates Reform Act 

This rule will not impose an 

unfunded mandate on State, local, or 

tribal governments, in the aggregate, or 

the private sector of $100 million or 

more per year; nor will it have a 

significant or unique effect on State, 

local, or tribal governments. The rule 

will not impose requirements on any of 

these entities. Therefore, the BLM does 

not need to prepare a statement 

containing the information required by 

the Unfunded Mandates Reform Act (2 

U.S.C. 1531 et seq.). 


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25212 Federal Register / Vol. 78, No. 83 / Tuesday, April 30, 2013 / Rules and Regulations 

Executive Order 12630, Governmental 

Actions and Interference With 

Constitutionally Protected Property 

Rights (Takings) 

This rule is not a government action 

that interferes with constitutionally 

protected property rights. This rule sets 

out a process which could be used to 

temporarily segregate, by publication of 

a notice in the Federal Register, public 

lands included within a pending or 

future solar or wind energy generation 

ROW application, or public lands 

identified by the BLM for a potential 

future wind or solar energy generation 

ROW authorization. Such segregations 

would remove those public lands from 

the operation of the public land laws, 

including the location of new mining 

claims under the Mining Law, but not 

the MLA or the Materials Act, for a 

period of up to two years. The rule 

allows a BLM State Director to extend 

the segregation for up to an additional 

two-year period based on a written 

finding that such extension is necessary 

to promote the orderly administration of 

the public lands. Because any 

segregation under this rule would be 

subject to valid existing rights, it does 

not interfere with constitutionally 

protected property rights. Therefore, the 

Department has determined that this 

rule does not have significant takings 

implications and does not require 

further discussion of takings 

implications under this Executive 

Order. 

Executive Order 13132, Federalism 

The rule will not have a substantial 

direct effect on the states, or the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the levels of 

government. It will not apply to states 

or local governments or state or local 

government entities. Therefore, in 

accordance with Executive Order 13132, 

the BLM has determined that this rule 

does not have sufficient Federalism 

implications to warrant preparation of a 

Federalism Assessment. 

Executive Order 12988, Civil Justice 

Reform 

Under Executive Order 12988, the 

BLM has determined that this rule will 

not unduly burden the judicial system 

and that it meets the requirements of 

sections 3(a) and 3(b)(2) of the Order. 

Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments 

In accordance with Executive Order 

13175, the BLM has found that this rule 

does not include policies that have 

tribal implications. This rule applies 

exclusively to lands administered by the 

BLM. It is not applicable to and has no 

bearing on trust or Indian lands or 

resources, or on lands for which title is 

held in fee status by Indian tribes, or on 

lands held in trust for the benefit of 

tribes or individual Indians that are 

managed by the Bureau of Indian 

Affairs. 

Information Quality Act 

In developing this final rule, the BLM 

did not conduct or use a study, 

experiment, or survey requiring peer 

review under the Information Quality 

Act (Section 515 of Public Law 106– 

554). 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

In accordance with Executive Order 

13211, the BLM has determined that 

this rule is not likely to have a 

significant adverse effect on energy 

supply, distribution, or use, including a 

shortfall in supply, price increase, or 

increased use of foreign supplies. The 

BLM’s authority to segregate lands 

under this rule is of a temporary nature 

for the purpose of encouraging the 

orderly administration of public lands, 

including the generation of electricity 

from wind and solar resources on the 

public lands. Any increase in energy 

production as a result of this rule from 

wind or solar sources is not easily 

quantified, but the rule is expected to 

relieve obstacles and hindrances to 

energy development on public lands. 

Executive Order 13352—Facilitation of 

Cooperative Conservation 

In accordance with Executive Order 

13352, the BLM has determined that 

this rule will not impede the facilitation 

of cooperative conservation. The rule 

takes appropriate account of and 

respects the interests of persons with 

ownership or other legally recognized 

interests in land or other natural 

resources; properly accommodates local 

participation in the Federal decisionmaking process; and provides that the 

programs, projects, and activities are 

consistent with protecting public health 

and safety. 

Paperwork Reduction Act 

The rule does not contain information 

collection requirements that the Office 

of Management and Budget must 

approve under the Paperwork Reduction 

Act of 1995. 

Author 

The principal author of this rule is Jeff 

Holdren, Realty Specialist, Division of 

Lands and Realty, assisted by the 

Division of Regulatory Affairs, 

Washington Office, Bureau of Land 

Management, Department of the 

Interior, and the Office of the Solicitor, 

Department of the Interior. 

List of Subjects 

43 CFR Part 2090 

Airports; Alaska; Coal; Grazing lands; 

Indian lands; Public lands; Public 

lands—classification; Public lands— 

mineral resources; Public lands— 

withdrawal; Seashores. 

43 CFR Part 2800 

Communications; Electric power; 

Highways and roads; Penalties; 

Pipelines; Public lands—rights-of-way; 

Reporting and recordkeeping 

requirements. 

For the reasons stated in the preamble 

and under the authorities stated below, 

the BLM proposes to amend 43 CFR 

parts 2090 and 2800 as follows: 

Subchapter B—Land Resource 

Management (2000) 

PART 2090—SPECIAL LAWS AND 

RULES 

■ 1. The authority citation for part 2090 

continues to read as follows: 

Authority 43 U.S.C. 1740. 

Subpart 2091—Segregation and 

Opening of Lands 

■ 2. Amend § 2091.3–1 by adding 

paragraph (e) to read as follows: 

§ 2091.3–1 Segregation. 

* * * * * 

(e)(1) The Bureau of Land 

Management may segregate, if it finds it 

necessary for the orderly administration 

of the public lands, lands included in a 

right-of-way application under 43 CFR 

subpart 2804 for the generation of 

electrical energy from wind or solar 

sources. In addition, the Bureau of Land 

Management may also segregate lands 

that it identifies for potential rights-ofway for electricity generation from wind 

or solar sources when initiating a 

competitive process for solar or wind 

development on particular lands. Upon 

segregation, such lands will not be 

subject to appropriation under the 

public land laws, including location 

under the Mining Law of 1872, (30 

U.S.C. 22 et seq.), but would remain 

open under the Mineral Leasing Act of 

1920 (30 U.S.C. 181 et seq.) or the 

Materials Act of 1947 (30 U.S.C. 601 et 


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Federal Register / Vol. 78, No. 83 / Tuesday, April 30, 2013 / Rules and Regulations 25213 

seq.). The BLM will effect a segregation 

by publishing a Federal Register notice 

that includes a description of the lands 

being segregated. The BLM may effect 

segregation in this way for both pending 

and new right-of-way applications. 

(2) The effective date of segregation is 

the date of publication of the notice in 

the Federal Register. The segregation 

terminates consistent with subpart 

2091.3–2 and the lands automatically 

open on the date that is the earliest of 

the following: 

(i) When the BLM issues a decision 

granting, granting with modifications, or 

denying the application for a right-ofway; 

(ii) Automatically at the end of the 

segregation period stated in the Federal 

Register notice initiating the 

segregation, or 

(iii) Upon publication of a Federal 

Register notice terminating the 

segregation and opening the lands in 

question. 

(3) The segregation period may not 

exceed 2 years from the date of 

publication in the Federal Register of 

the notice initiating the segregation, 

unless the State Director determines and 

documents in writing, prior to the 

expiration of the segregation period, that 

an extension is necessary for the orderly 

administration of the public lands. If the 

State Director determines an extension 

is necessary, the Bureau of Land 

Management will extend the segregation 

for up to 2 years by publishing a notice 

in the Federal Register, prior to the 

expiration of the initial segregation 

period. Segregations under this part may 

only be extended once and the total 

segregation period may not exceed 4 

years. 

PART 2800—RIGHTS-OF-WAY UNDER 

THE FEDERAL LAND POLICY 

MANAGEMENT ACT 

■ 3. The authority citation for part 2800 

continues to read as follows: 

Authority: 43 U.S.C. 1733, 1740, 1763, and 

1764. 

Subpart 2804—Applying for FLPMA 

Grants 

■ 4. Amend § 2804.25 by adding 

paragraph (e) to read as follows: 

§ 2804.25 How will BLM process my 

application? 

* * * * * 

(e)(1) The BLM may segregate, if it 

finds it necessary for the orderly 

administration of the public lands, 

lands included in a right-of-way 

application under 43 CFR subpart 2804 

for the generation of electrical energy 

from wind or solar sources. In addition, 

the Bureau of Land Management may 

also segregate lands that it identifies for 

potential rights-of-way for electricity 

generation from wind or solar sources 

when initiating a competitive process 

for solar or wind development on 

particular lands. Upon segregation, such 

lands would not be subject to 

appropriation under the public land 

laws, including location under the 

Mining Law of 1872 (30 U.S.C. 22 et 

seq.), but would remain open under the 

Mineral Leasing Act of 1920 (30 U.S.C. 

181 et seq.) or the Materials Act of 1947 

(30 U.S.C. 601 et seq.). The BLM would 

effect a segregation by publishing a 

Federal Register notice that includes a 

description of the lands being 

segregated. The BLM may effect 

segregation in this way for both pending 

and new right-of-way applications. 

(2) The effective date of segregation is 

the date of publication of the notice in 

the Federal Register. Consistent with 43 

CFR 2091–3.2, the segregation 

terminates and the lands automatically 

open on the date that is the earliest of 

the following: 

(i) When the BLM issues a decision 

granting, granting with modifications, or 

denying the application for a right-ofway; 

(ii) Automatically at the end of the 

segregation period stated in the Federal 

Register notice initiating the 

segregation; or 

(iii) Upon publication of a Federal 

Register notice terminating the 

segregation and opening the lands. 

(3) The segregation period may not 

exceed 2 years from the date of 

publication in the Federal Register of 

the notice initiating the segregation, 

unless the State Director determines and 

documents in writing, prior to the 

expiration of the segregation period, that 

an extension is necessary for the orderly 

administration of the public lands. If the 

State Director determines an extension 

is necessary, the BLM will extend the 

segregation for up to 2 years by 

publishing a notice in the Federal 

Register, prior to the expiration of the 

initial segregation period. Segregations 

under this part may only be extended 

once and the total segregation period 

may not exceed 4 years. 

Dated: April 23, 2013. 

Tommy P. Beaudreau, 

Acting Assistant Secretary of the Interior, 

Land and Minerals Management. 

[FR Doc. 2013–10087 Filed 4–29–13; 8:45 am] 

BILLING CODE 4310–84–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

Docket No. 120919471–2584–01] 

RIN 0648–BC59 

Temporary Rule To Extend the 

Increase of the Commercial Annual 

Catch Limit for South Atlantic 

Yellowtail Snapper 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; emergency 

measures extended. 

SUMMARY: NMFS issues this temporary 

rule to extend the effectiveness of the 

increase of the commercial annual catch 

limit (ACL) for yellowtail snapper 

implemented by a temporary rule 

published by NMFS on November 7, 

2012. The commercial ACL for 

yellowtail snapper of 1,596,510 lb 

(724,165 kg), round weight, will be 

extended for up to an additional 186 

days, until permanent measures are 

implemented, as requested by the South 

Atlantic Fishery Management Council 

(Council). The intent of this temporary 

rule is to ensure the commercial ACL for 

yellowtail snapper is based on the best 

scientific information available and to 

help achieve optimum yield (OY) for the 

yellowtail snapper resource. 

DATES: The effective period for the 

temporary rule published at 77 FR 

66744, November 7, 2012, is extended 

from May 6, 2013, through November 

28, 2013, unless NMFS publishes a 

superseding document in the Federal 

Register. 

ADDRESSES: Electronic copies of 

documents supporting this temporary 

rule may be obtained from the Southeast 

Regional Office Web site at http:// 

sero.nmfs.noaa.gov/sf/ 

SASnapperGrouperHomepage.htm. 

FOR FURTHER INFORMATION CONTACT: Kate 

Michie, Southeast Regional Office, 

NMFS, telephone: 727–824–5305, email: 

Kate.Michie@noaa.gov. 

SUPPLEMENTARY INFORMATION: NMFS and 

the Council manage the snapper-grouper 

fishery, which includes yellowtail 

snapper, off the southern Atlantic states 

under the Fishery Management Plan for 

the Snapper-Grouper Fishery of the 

South Atlantic Region (FMP). The 

Council prepared the FMP and NMFS 

implements the FMP through 

regulations at 50 CFR part 622 under the 


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